The Supreme Court declined to hear the appeal of Bongani Charles Calhoun, convicted of a Federal Drug Conspiracy and is likely doing decades in jail as a result. The primary issue at trial was whether Calhoun knew that the friend he had accompanied on a road trip, along with the friend’s associates, were about to engage in a drug transaction, or whether instead Calhoun was merely present during the group’s drive home, when the others attempted to purchase cocaine from undercover Drug Enforcement Agency (DEA) agents. A very common scenario in drug conspiracy cases – defendant says he had no idea, DEA and a snitch or two say he knew all along. These cases are often winnable for the defense if there is no direct evidence of the defendant’s knowledge.

So when Calhoun, an African-American, took the stand in his defense and denied knowledge of the drug conspiracy, the Federal prosecutor took a stab at creating some circumstantial evidence to help the case along. He asked the defendant:

“You’ve got African-Americans, you’ve got Hispanics,
you’ve got a bag full of money. Does that tell you—a light bulb
doesn’t go off in your head and say, This is a drug deal?”

Ya just gotta love Texas! Incredibly – no, absolutely incredibly – his lawyer did not object to the question! (presumably , Calhoun answered “No.”) As I said , you just gotta love Texas where court-appointed counsel can barely stay awake through a whole trial. The case then entered the realm of the Twilight Zone when the appellate lawyer fared no better – failing to argue before the Fifth Circuit that because this constituted “plain error” the court could still hear the argument even though the trial lawyer failed to preserve the argument by objecting. The Supreme Court had no alternative under their prior cases but to deny this appeal on procedural grounds. [The propriety and fairness of that law is too long an argument to hash out in this blog post, so it will tabled. Suffice it say that I find it hard to stomach that the clear malpractice of two consecutive lawyers should be borne by the defendant where there is such plain error].

But Justice Sotomayor, of course, the first Hispanic Justice on the Big Bench, could not let it go so easily. Denials of writs of certiorari (the method to get the US Supreme Court to hear your case) are rarely accompanied by a decision; they usually consist of a one line denial. But Sotomayor said she had to “write to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark. It should not.”

She first quickly set forth the long-established law that prosecutors cannot inject race into a criminal trial:

“The Constitution prohibits racially biased prosecutorial arguments.” McCleskey v. Kemp, 481 U. S. 279, 309, n. 30 (1987). Such argumentation is an affront to the Constitution’s guarantee of equal protection of the laws. And by threatening to cultivate bias in the jury, it equally offends the defendant’s right to an impartial jury. Judge Frank put the point well: “If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice.” United States v. Antonelli Fireworks Co., 155 F. 2d 631, 659 (CA2 1946) (dissenting opinion) (footnote omitted). Thus it is a settled professional standard that a “prosecutor should not make arguments calculated to appeal to the prejudices of the jury.” ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3–5.8(c), p. 106 (3d ed.1993).”

She then plucked out two doozys from the casebooks to remind everyone of what used to happen in US courtrooms:

There was a time when appeals to race were not uncommon, when a prosecutor might direct a jury to “‘consider the fact that Mary Sue Rowe is a young white woman and that this defendant is a black man for the purpose of determining his intent at the time he entered Mrs. Rowe’s home,’” Holland v. State, 247 Ala. 53, 22 So. 2d 519, 520 (1945), or assure a jury that “‘I am well enough acquainted with this class of niggers to know that they have got it in for the [white] race in their heart,’” Taylor v. State, 50 Tex. Crim. 560, 561, 100 S. W. 393 (1907).

While acknowledging that the Asst US Attorney here did not go quite that far, she did say that it was clear that he tried “to substitute racial stereotype for evidence, and racial prejudice for reason.” For a US Attorney to engage in this kind of question in 2013 was “deeply disappointing” and stated:

Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice

Justice Breyer signed on to the opinion; it is unclear why all the judges wouldn’t want to put their names to this opinion. Will anything happen to the US Attorney who asked this question? Probably not. After all, in arguing to the Circuit Court, the government – the US Dept of Justice- called it only “impolitic” and argued that “even assuming the question crossed the line,” it did not prejudice the outcome. This prompted Judge Haynes of the Fifth Circuit to “clear up any confusion—the question crossed the line.” 478 Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). It took the Solicitor General of the United States to finally admit that the “prosecutor’s racial remark was unquestionably improper.” Judge Sotomayor noted that even that came only after she directed the DOJ to file a response to the petition for a writ, which the government first waived. Judge Sotomayor’s disgust and shame was felt throughout the opinion ans she closed it by saying ” I hope to never see a case like this again.”

It speaks volumes for the need for diversity on a bench so that one’s life experiences can help see all sides to a case. During her confirmation hearings an old quote of hers stirred some controversy but proved prophetic:

I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion.”